Ch. Ejaz Yousaf, C.J.--This judgment will dispose of two connected appeals i,e, Criminal Appeal No, 56/I of 2003 filed by appellants Sher Muhammad alias Shaira son of Sultan and Ghulam Abbas alias Muhammad Abbas son of Ghulam Hassan and Jail Criminal Appeal No, 58/I of 2003, filed by appellant. Niaz alias Papu son of Shafi Muhammad as both these appeals arise out of the same judgment dated 26.3.2003 passed by the learned Additional Sessions Judge, Lodhran whereby the afore-named, appellants were convicted under Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to death.
Criminal Murder Reference No, 10 of 2003 has been sent by the learned Additional Sessions Judge, Lodhran for confirmation of death sentences inflicted on the respondents.
2. Facts of the case, in brief, are that private complaint was filed by one Mst. Afsana Bibi alias Rukhsana Bibi under Section 10(4) of "the Ordinance" wherein, it was alleged that 9/10 months ago, on 23.12.2000, in the absence of complainant's mother namely Naseem Bibi who alongwith her younger children had, in order to condole the death of her uncle, gone to Jalalpur and complainant's father, in order to earn livelihood, to a brick kiln, at about 8 p.m. the accused persons namely, Muhammad Abbas son of Ghulam Abbas, Niaz Pupo armed with dagger and Sher Muhammad alias Shera empty handed, entered in her house and forcibly committed zina with her turn by turn. In the meantime, however, on the alarm raised by her, complainant's father Muhammad Afzal, uncle Muhammad Qasim and Shahid, were attracted whereupon, the culprits field. It was claimed that since the complainant was a virgin girl of 14/15 years, therefore, the accused persons by committing the above act had rendered themselves liable for the offence/criminal action under Section 10(4) of "the Ordinance". It was further stated in the complaint that since complainant had reported the matter to the police and in consequence, FIR Bearing No, 463 dated 24.12.2000 was registered under Section 10(3) of "the Ordinance" read with Section 452 PPC yet, since the local police was not prepared to redress the grievance of the complainant and, being in league with the offenders, was twisting and suppressing the material facts, therefore, per-force, she was constrained to file the complaint. Record reveals that the case was transferred to the file of the Additional Sessions Judge, Lodhran, for disposal who after recording the statement of the complainant, sent the complaint to the Judicial Magistrate, Section 30 Lodhran, for inquiry under Section 202 Cr.P.C. On receiving report from the Judicial Magistrate the learned trial Judge summoned the accused persons to face trial under Sections 10(4), of "the Ordinance" and 458 PPC. However, stayed proceedings in the "challan case" vide order dated 22.1.2002 which, too, was pending in his Court.
3. At the trial, the complainant after producing two witnesses namely, P.W. 2 Muhammad Afzal and P.W. 3 Lady Doctor Rubeena got examined herself as P.W. 1 and closed the prosecution evidence.
Muhammad Qasim PW, was, however, being unnecessary, given up by her. Chemical Examiner's report Exh.PC/2 was tendered in evidence. Thereafter statements of the, accused persons were recorded under Sections 342 Cr.P.C. The accused persons did not opt to appear as their own witnesses in terms of Section 340(2) Cr.P.C., however, tendered in defence copies of Report No, 17 dated 3.2.2001 as Exh.DB; copy of complaint titled Atta Ellahi vs. Ghulam Muhammad as Exh.DC and a copy of order of the Court regarding above-mentioned complaint as Exh.DD.
4. After hearing arguments of the learned counsel for the parties the learned trial Judge convicted the appellants and sentenced them to the punishments as mentioned in the opening para hereof.
5. It has been mainly, contended by the learned counsel for the appellants that though, while proceeding with the complaint, proceedings in the challan case were stayed by the learned trial Judge yet, he has gravely erred in omitting to examine, in addition to the witnesses examined by the complainant, the rest of the witnesses mentioned in the "challan case' because it was necessary for proper adjudication of the matter, in view of the law laid down by the Hon'ble Supreme Court of Pakistan in Nur Elahi's case (PLD 1966 Supreme Court 708). He has maintained that since due to the omission so made, the appellants were highly prejudiced in their defence, because counter version could not be substantiated, therefore, the impugned judgment being unsustainable may be set aside and case be remanded to the trial Judge for rectification of the defect.
6. Mr. Anis M. Shahzad, Advocate, learned counsel for the State has candidly conceded that in view of the law laid down in Nur Elahi's case, the learned trial Judge ought to have examined the witnesses, whose names were mentioned in the schedule of the challan case, moreso when the instant was a case of capital punishment.
7. Notwithstanding the fact that the learned counsel for the State has not controverted the contention raised by the learned counsel for the appellants we have given our anxious consideration to the respective contentions of the learned counsel for the parties besides perusing record of the case, minutely. It may be mentioned here that in the. challan case, names of nine witnesses including, the three examined by the complainant, at the trial, were given in the schedule but none of them were called and examined by the learned trial Judge after close of evidence by the complainant. It may be noted here that though the complainant was at liberty to examine as many witnesses of her choice as were deemed appropriate to substantiate the charge yet, since the challan case with regard to same incident was also pending before the Court and proceedings therein were consciously stayed by the trial Judge and rightly so because in order to avoid future complications it was necessary, yet, having regard to the law laitl down by the Hon'ble Supreme Court of Pakistan in Nur Elahi's case and affirmed in the cases of Ali and others v. The Crown, PLD 1954 Lah. 183, Noor Ahmad v. The State and Rahim Bakhsh v. The State PLD 1964 SC 120 and Ali Muhammad v. Amir Ali and others, should have decided the case after consideration of whole/entire material relied upon by the parties and, therefore, after close of prosecution evidence by the complaint should have also examined the witnesses mentioned in the challan case under Section 540A Cr.P.C. if they were not already examined by the complainant. It would be instructive to reproduce hereinbelow the observations made by the Hon'ble Supreme Court of Pakistan in Nur Elahi's case which read as follows: "The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has caused us some concern. The learned Advocate-General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the Police version, to summon the witnesses supporting the counter version as Court witnesses under Section 540-A of the Code of Criminal Procedure, so that the record contains all the relevant evidence.
Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under Section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution; with the permission of the Court, under Section 494 of the Code of Criminal. Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law.
It would be pertinent to mention here that in the cases of Mst. Naziran vs. Saifal and other reported as 1998 P.Cr.L.J. 1689 and Mst. Kausar Shaheen vs. Said Rasool and 3 others 2001 P.Cr.L.J. 244 judgments of the Courts below were set aside by this Court as well when it was found that in, conducting trial, the procedure laid down in Nur Elahi's case was not followed.
Since, in the instant case, the trial Court has committed material irregularity by not following the procedure laid down by the Hon'ble Supreme Court as well as by this Court in the afore-mentioned judgments, therefore, the impugned judgment cannot be sustained.
8. Resultantly, the impugned judgment dated 26.3.2003 passed by the learned Additional Sessions Judge, Lodhran is set aside and the case, with consent of the parties, is remanded to the trial Court for its decision afresh in accordance with law with a direction that in addition to the witnesses already examined by the complainant, the witnesses whose names were mentioned in the schedule of the challan case be also summoned and examined as Court witnesses with opportunity to cross-examination to both the parties. Thereafter the appellants be re-examined under Section 342 Cr.P.C. Needless to point out that appellants shall be at liberty to get record their statements on oath in terms of Section 340(2) Cr.P.C. or to lead evidence in their defence with regard to the circumstances/evidence which may come on record through the statements of the witnesses examined after remand.
The Criminal Murder Reference, in view of remand of the case, is answered in negative.